Ball v. Bank of Alabama

COLLIER, C. J. 1. We think it entirely clear, that the Court very properly refused to charge the jury, that the testimony of the Cashier and his assistant was no evidence, that the notice of the protest of the bill was deposited in the post office in N. Orleans, in time to be forwarded by the first mail after its dishonor. True, these witnesses could not testify that the notice was thus mailed, because -they were, at the time of the protest, 'some hundreds of miles distant from New Orleans ; but the facts they state are quite convincing, and inconsistent with the' idea that notice was not duly received by the plaintiff, and addressed and mailed in due season by its assistant cashier to the defendant. The manner of — 596 — doing business by the. Bank, and the absence of any memoranda by the Cashier, showing irregularity in the receipt of the notice, raise a presumption sufficiently strong to sustain a verdict against the defendant. In Carson v. The Bank of the State of Alabama, 4 Ala. Rep. 148, it was held, that the jury would be warranted in inferring a notice of the dishonor of a bill was regularly given. 2. The agreement under which Brown shipped his cotton through the Bank to New Orleans, does not entitle him to the difference of exchange between Alabama Bank paper and par funds at the time the bill matured. It is expressly provided by the seventh article of the agreement, that two per cent, exchange shall be allowed, on the nett amount of the sale, if it b.e made in New Orleans or New York. This stipulation is not controlled by the fluctuation in the price of exchange, but the drawer of the bill is entitled to the benefit of it, though the paper currency of Alabama might have appreciated so as to be equivalent to gold and silver. And on the other hand, the Bank is entitled to retain a sufficiency of the proceeds of the cotton to extinguish the bill, without allowing more than two per cent, for exchange, though its paper may have greatly depreciated after the purchase, and before the maturity of the bill. The rate of exchange between different places is subject to all the vicissitudes of commerce, and any contract for the payment of a fixed per cent, at a future day, must at best be hazardous. This being the case, the seventh ai-ticle of the agreement is not obnoxious to the laws against usury, or any rule of policy.; and must therefore be supported. Conven-tio vincit dot legem. 3. Mr. Greenleaf, in his treatise on evidence, lays it down generally, that the surety or bail may be made a competent witness for his principal, by depositing in Court a sufficient sum of money to cover his liability, [p. 477.] And such would seem to have been the decision in Bailey v. Hole, 3 C. & P. 560; Pearcy v. Fleming, 5 C. & P. Rep. 503; see also, 1 Mood. & M. Rep. 289. In Allen v Hawks, 13 Pick. Rep. 79, it was held, that where goods attached are returned to the defendant, upon a receipt given by a third person, stating the value of the goods and promising to deliver them to the officer in case the plaintiff should recover, the' competency of the receiptor to testify in the suit may be restored by placing in his hands a sum of money equal to the — 597 — whole amount for which he can by possibility, be liable on his receipt. To the same effect are Hall v. Baylies, 15 Pick. Rep. 51, and Beckley v. Freeman. Id.; see also, Roberts v. Adams, 9 Greenl. Rep. 9; Chaffee v. Thomas, 7 Cow. Rep. 358; Collins v. McCrummen, 3 Martin’s Rep. N. S. 166-9. In Meeker’s assignees v. Williamson, 8 Martin’s R. 365, 370, it was adjudged, that if a party interested only on account of costs, deposit, or offer to deposit with the clerk, such sum as shall be directed by the Court, to cover the costs, in case he shall be decreed to pay any, his interest will not be thereby removed. In some of the cases cited, the money was placed in the hands of the party offered as a witness. This was clearly sufficient to neutralize the interest which would otherwise have rendered him incompetent; for if the witness should be charged, he would have the means of payment provided, by which he might relieve himself, and if his liability should not be fixed, he could refund the money deposited with him. So that it would be unimportant to him, whether the one party or the other was successful in the cause. In the other cases a sum of money equal to the immediate, or consequential liability of the witnpss was deposited with the proper officer of the Court, and this it was held was equivalent in law to a release. If it is competent for a Court to make its clerk the keeper and custodian of money paid under such circumstances, and such payment will satisfy a judgment to be rendered in a suit afterwards to be brought, then it is difficult to conceive of any objection to thus making an interested witness competent to testify. We will briefly consider what are the duties and powers of a clerk in this respect. The act of 1812 declares, that every clerk shall enter into bond conditioned, (among other things,) « for the due and faithfnl execution of his office,” [Clay’s Dig. 143, § 2;] and the bond provided by the act of 1819, is conditioned “for the faithful discharge of the duties of their offices.” [Id. § 3.] By the 5th section of the act of 1834, “ to provide a more summary mode of collecting money from clerks,” [Clay’s Dig. 147, § 24,] it is enacted, that in all cases where money shall be paid to the clerk of any Court, the party entitled to receive it, shall have the same remedy for its recovery, and the same damages for its detention, as are now provided and allowed by law, for money paid to clerks on execution, and it is hereby expressly made the duty of all clerks to re — 598 — ceive and account for all such sums of money as may be paid to them by either party, as well after as before the issuance of the execution.” A summary remedy by notice and motion for the failure or i-efusal to pay over,money collected or received on execution, is provided by law. [Clay’s Dig. 218, § 83 ; 329, § 94.] In respect to the act of 1834, it has been decided, that- money paid to the clerk of a Court, in satisfaction of a judgment which has been rendered therein, will be a good payment, and will au-thorise the entry of satisfaction pro tanto. [Murray v. Charles, 5 Ala. Rep. 678.] So it has been decided that our statutes relating to the powers and duties of clerks, do not authorize a clerk to receive money in a cause pending and undetermined in his Court. But independent of statutory enactment, it was said, “ no case is remembered in which money can be lawfully paid to the clerk in vacation, or in any other manner than as the pfficer of the Court, in term time, and the receipt of which is always shown by some record of the Court, or some proceeding yet on paper, but progressing to a record.” Again, “ There are several stages in the proceedings of a case, in which the clerk of a Court is by law authorized to be the holder of the money which may be paid into Court. Thus on plea pleaded, when the cause of action is admitted to a partial extent, and denied as to the residue. So in the case of a tender — so also, when money is paid into Court in satisfaction of a judgment.” In these cases, the money is, in legal presumption, in Court, and the clerk holds it merely as a fiduciary. [Currie v. Thomas, 8 Porter’s Rep. 293.] It is clear, that in virtue of our statutes the clerk oí a Court has no authority to receive money in discharge of an action which is pending, or probably to be brought in future ; and we think the common law does not confer the power in the case now before us. The deposit of a sum equal to the costs to which the witness would be liable to the defendant in the event of the plaintiff’s success, if made by the defendant himself, might operate as a release of the costs, and bar a recovery of them by him. But is it competent for an attorney at law, when retained for the purpose of defending a suit, to release from liability to his client a third person whom it is proposed to examine as a witness for him. An attorney has power to bind his client by many acts, being always liable to him for any abuse of his authority. [Alton v. Gilmanton, 2 New Hamp. Rep. 520; Mayer v. Foulkrod, 4 — 599 — Wash. C. C. Rep. 503.] Thus he may waive the right of appeal. [Pike v. Emerson, 5 New Hamp. Rep. 393; Haskell v. Whitney, 16 Mass. Rep. 396.] So it has been held he may submit a cause to arbitration-[Holker, et al. v. Parker, 7 Cranch’s Rep. 436: Talbot v. Magee, et al. 4 Monr. Rep. 375,]-may discontinue a suit-[Gaillard, et al. v. Smart, 6 Cow. Rep. 386]-after judgment may receive payment-[Branch v. Beatly, et al. 1 Call. Rep 127] — but he cannot assign the judgment without a special authority — Walden v. Grant, et al. 20 Martin’s Rep. 565] —nor discharge a debtor by receiving a less sum than was due, or commute a debt by receiving • something else than money. [Lewis v. Gamage, et al. 1 Pick. Rep. 347; Smock v Dade, 4 Rand. Rep. 639; see also, 5 Stew. & P. Rep. 34, 354; 1 Porter’s Rep. 212.] In Murray v. House, 11 John. Rep. 518, the plaintiff’s attorney, in order to make an interested witness competent for his client, released him, and he was permitted by the primary Court to give evidence ; but the appellate Court held, that a parol request to an attorney to represent a party to a suit, does not authorize him to l-elease the interest of a witness. So in Marshall v. Nagel, 1 Bailey’s Rep. 308, it was determined that an attorney cannot, without special authority, í-elease a witness who is liable over to his client, and thus render him competent to testify. The cases which maintain the want of authority in an attor-ne3r to release a witness from liability to his client, are perhaps defensible upon the ground that the attorney’s appointment is by parol merely, and a release which is under seal, must be authorized by an instrument of equal dignity. But they might be rested upon higher ground, viz: the want of power generally. In retaining counsel for the prosecution or defence of a suit, the right to do many acts in respect to the cause, are embraced as ancillary, or incidental to the general authority conferred. It cannot be implied from the power to defend one suit, that the right to discharge other liabilities, which the client may enforce, are also vested in the attorney. It cannot vary the principle, whether these liabilities be for a large or small sum ; for costs, or for monies due under an express contract. In neither case does the nature of the employment embrace the authority in question as an incident. Laying out of view the want, of a sealed authority, we have — 600 — seen that an attorney cannot remit a liability which his client might enforce, for the purpose of removing the interest of a witness. In such case the client’s consent is necessary to the validity of the act. How then can the attorney discharge the , liability of the witness by the deposit of a sum of money equal thereto ? The payment to the clerk will not bar a recovery by the client, though if he pay it over, he may extinguish the judgment pro tanto. The interest of the witness then, still continues, though the clerk may be ultimately responsible to him. He must provide the means of payment, so far as the defendant is concerned, and this is quite enough to show his incompetency to testify; for the liability of the clerk may prove unproductive, and ifit be such as his sureties are not bound to make good, the indemnity of the witness will of course be less likely to be realized. From this view it results, that the Circuit Court rightly excluded Brown as a witness, upon the propositions of the defendant’s counsel. We have considered the case upon the hypothesis, that the defendant was an accommodation indorser, and that the drawer of the bill would be liable to refund to him the costs of the suit, if he was unsuccessful. [The Com. Bank of Columbus v. Whitehead, 4 Ala. Rep. 637.] The facts recited in the bill of exceptions very clearly show, that the defendant and Brown occupied that relation to each other. 4. The second article of the agreement under which the plaintiffs were permitted to control the cotton and receive the proceeds, provides that it should be “ shipped only to the agents of the Bank.” This stipulation made the agents of the Bank pro re nata agents of the drawer of the bill, for whose benefit the shipment was made, to the same extent as if they had been designated by name, although the contract between the shipper and the Bank authorized the latter to select the factors, and call them to an account. In Black v. Richards, 2 Stewart & P. Rep. 338, the defendant set upas adefencethat he had made an agreement with the plaintiff, by which the latter was to ship the defendant’s cotton to the house of B. B. & R. ofNew Orleans, and that he had violated the agreement in consigning it to himself. To show that the cotton had been shipped according to contract, and to prove the amount of sales, the plaintiff offered an account of sales from the house of B. B. & R.; but it was objected to as “ secondary evidence,” and — 601 — excluded from the jury. This Court held, that if the contract were such as the defendant insisted, then he made Messrs. B. B. & R. his agents, and the account of sales made out by them was evidence to show that the plaintiff had performed his undertaking. The fact that an individual is the agent of one of the parties, subject to his direction and control, does not necessarily prevent him from being considered as the agent :of the other. Thus in an action by a Bank against a depositorwho has overdrawn, the books of the Bank were received to show receipts and payments of money — the officers being .so far the agents of both parties. [Union Bank v. Knapp, 3 Pick. Rep. 96.] It is toó well settled to be questioned, that the declarations of an agent, while acting and speaking for the principal, and within the scope of his authority, are admissible in evidence against the principal, notwithstanding .he is a competent witness. [Boring v. Clarke, 19 Pick. Rep. 220; 2 Phil. Ev. 180 to 185, 189, 190, 684, C. & H.’s notes.] The evidence adduced shows, that Messrs. Kirkman, Abernathy & Hanna were the agents for the plaintiff for the sale of cotton in New Orleans; that the drawer of the bill stipulated with the plaintiff,' that the cotton in question shonld be sold by the agents of the latter, and this was sufficient to have authorized the admission of the account of sales as against the drawer. And as the defendant, an accommodation indorser, set up in his defence the agreement between the Bank and .the drawer of the bill, it was competent for the plaintiff to shpw he had performed it, by such evidence as was admissible against the drawer. This view disposes of all the questions raised upon the record, and the result is, .that the judgment must be affirmed.